- 14 - In the case at hand, petitioners have failed to convince us of a specific amount that was withheld as retentions. We know that the contractual terms were not followed, that no reliable documentary evidence is available to establish the true retention amounts, and that Mr. Farnsworth’s testimony concerning the retention amounts satisfies neither the rules of arithmetic nor the laws of probability. More importantly, even if petitioners had established the retention amounts, petitioners have failed to establish by a preponderance of the evidence that the retention amounts were included in Mr. Farnsworth’s taxable income. In order for the retention amounts to give Mr. Farnsworth a basis in the DMAA, petitioners would have to establish that Mr. Farnsworth reported the retention amounts as income for the years in which they were withheld; otherwise the retention amounts would not constitute a cost of his interest in the DMAA that would be taken into account for income tax purposes. See sec. 1012 (basis of property is cost); Gertz v. Commissioner, 64 T.C. 598 (1975) (disallowing bad debt deduction for unpaid wages that were never included in income). Petitioners offered no evidence, other than Mr. Farnsworth’s self-serving testimony, to show that Mr. Farnsworth previously included the retention amounts in income.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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